Ohio Can't Police Your Reason For Getting An Abortion, Says Appeals Court
Way back in December of 2017, then Ohio Governor John Kasich — the "reasonable" and polite Republican who gets the Chris Matthews types all weak in the knees — signed an incredibly stupid anti-choice bill making it a felony for doctors to perform an abortion if all or part of the reason for said abortion is that the fetus has been diagnosed with Down Syndrome. Called the "Antidiscrimination Law," the law essentially claimed that aborting a fetus with Down Syndrome meant discriminating against people with Down's Syndrome, including those who are not even fetuses anymore.
No, really. This is what Ohio deputy solicitor general Benjamin Flowers said in his defense of the law earlier this year:
"If women are selecting children with Down syndrome for abortion, if doctors are negatively counseling their patients to abort children when they have a Down syndrome diagnosis, the message that sends not only to children or people carrying a child but to people who are 30 years old is that if you have Down syndrome your life is not worth as much," Flowers said. "And that is the interest Ohio wants to protect."
The law never went into effect, because in March of 2018, U.S. District Court Judge Timothy S. Black issued a preliminary injunction on that law on the grounds that it violated a patient's right to privacy, which is pretty much the entire basis for Roe v. Wade. If it had, it would have meant up to 18 months in jail and a fine of $15,000 for any doctor who knowingly aborted a fetus with Down Syndrome.
Attorneys for the state attempted to argue that it didn't actually violate any right to privacy because doctors are not required to ask if a fetus has been diagnosed with Down Syndrome or not, and that it would thus probably only apply if the patient offered that information up themselves. Shockingly, that tack didn't work too well, because on Friday, in a 2-1 decision, three judges from the Sixth Circuit Court of Appeals upheld Black's decision. Yay! There is some sanity left in the world after all!
Well, except for the judge that voted to allow the law. Bush II appointee Alice Moore Batchelder had this to say in her dissent:
"Ohio concluded that permitting physicians to become witting accomplices to the deliberate targeting of Down syndrome babies would undermine the principle that the Down syndrome population is equal in value and dignity to the rest of Ohio's population"
Laws like this have absolutely nothing to do with any great love of the developmentally disabled, or even any problem with discrimination. The whole reason anti-choicers love to push them, aside from the hope that they will tug on the heartstrings of people too stupid to actually consider what a law like this would mean, is because they are the exact kind of case they need to go to the Supreme Court in order to overturn Roe v. Wade. The very basis of Roe is that the Fourteenth Amendment guarantees a right to privacy, and that banning abortion is a violation of this right. Obviously, if it can be legal to police the reasons for an abortion — which would obviously violate the privacy of patients — it would then follow that it would also have to be legal to violate their privacy by banning abortion entirely.
Unfortunately, we're not out of the woods in Ohio entirely yet — not only does the state plan to appeal this (again), but in May of this year, Governor Mike DeWine signed legislation banning abortions after six weeks, before many people even know they are pregnant. That, too, has been blocked by a preliminary injunction, but it's getting harder and harder to trust that these laws won't go through eventually.
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse